190 Iowa 874 | Iowa | 1920
“1. That the facts stated in plaintiff’s amended and substituted petition herein do not entitle him to the relief demanded.
“2. For that it appears on the face of the petition that Mary A. Murphy, deceased wife of the plaintiff, did not die seized and possessed of a legal or equitable estate in any of the property described or referred to in said petition.
“3. For that the facts stated in said petition do not entitle the plaintiff to the relief demanded in this: That the said petition and exhibits thereto attached show on their face that plaintiff’s wife, Mary A. Murphy, died prior to the death of her parents, James Mulhall and Ann Mulhall, and that she was not possessed of and did not own, at the time of her death, a legal or equitable estate in any of the property described or referred to in said petition and exhibits thereto • attached.
“4. For that it appears on the face of said petition and exhibits thereto attached that Henry E. Murphy, the plaintiff herein, is not an heir of James Mulhall or of Ann Mulhall or of his deceased wife, Mary A. Murphy.
“6. For that plaintiff’s cause of action, if any he had, is barred by Subdivisions 6 and 7, Section 3447, Supp. Code, 1913.
“7. For that plaintiff was guilty of laches and acquiescence for such length of time as to bar his action, if any he had.
“8. For that plaintiff’s said petition and the exhibits thereto attached show that the property has been conveyed and deed recorded for such length of time as to bar plaintiff’s action, which was not commenced until August 7, 1920. ’ ’
Appellant argues somewhat briefly the question as to whether appellant became a tenant in common with the other heirs of deceased; that the partition proceeding in 1902 and 1904 amounts, in law, to an implied parol partition, so far as appellant is c.oncerned, and that he, not having been a party thereto, was not bound; the statute of limitations, and laches. Some of these questions — perhaps all — might come up on a trial on the merits, if the ruling on the demurrer should be reversed. At any rate, the only proposition relied upon and argued by appellees is whether, under Sections 3366 and 3378 of the Code, 1897, plaintiff is an heir, and entitled to a part of the estate; and this is the question most elaborately argued by appellant. We understand counsel for both to concede that this is the decisive point in the case on this appeal. Appellant’s proposition, as he states it, and the cases cited in support, are :
“The rule of descent and distribution of the estate of James Muihall, deceased, is the same in the case of Mary A. Murphy’s death before that of her father as it would have been in the case of her death had she survived him. Upon the application of this rule, we determine descent. The operation of inheritance and distribution is precisely the same as it would have been had she lived and died after her father’s death. Code of 1897, Sections 3366 and 3378; Lawley v. Keyes, 172 Iowa 575; Bassil v. Loffer, 38 Iowa 451; McGuire v. Brown, 41 Iowa 650; Neely v. Wise, 44 Iowa 544; Moore v. Weaver, 53 Iowa 11; Lash v. Lash, 57 Iowa 88; Leonard v. Lining, 57 Iowa 648; In re Estate of Parker, 97 Iowa 593; Purcell v. Lang, 97 Iowa 610; Shick
The first statute cited reads:
“One third in value of all the legal or equitable estates in real property possessed by the husband at any time during the marriag'e, which have not been sold on execution or other judicial sale, and to which the wife had made no relinquishment of her right, shall be set apart as her property in fee simple, if she survive him. The same share of the real estate of a deceased wife shall be set apart to the surviving husband. All provisions made in this chapter in regard to the widow of a deceased husband shall be applicable to the surviving husband of a deceased wife. ’ ’
The other section reads:
“Subject to the rights and charges hereinbefore provided, the remaining estate of which the decedent died seized, shall, in the absence of a will, descend in equal shares to his children, unless one or more of them is dead, in which case the heirs of such shall inherit his or her share in accordance with the rule herein prescribed, in the same manner as though such child had outlived its parents.”
Under Section 3366, the plaintiff, having survived his wife, would have been entitled to one third in value, set off in fee, of real property possessed by her, which had not been sold or relinquished. His deceased wife, having deceased prior to her father, was never seized or possessed of the property in controversy, nor of any interest therein. The plaintiff’s rights in the real estate of his wife, if she had any, would be the same as his wife’s rights in his estate, if he were dead and she the survivor. The right of a widow in the real estate of her husband is substantially a dower, enlarged from a life estate to a fee-simple title. She does not obtain such dower by inheritance from her husband, but by her right, under the statute, in the property, when the property, at any time during marriage, belonged to the husband, unless lost or relinquished. As said, the property in question never became the property of plaintiff’s wife. She was never possessed of it, or of any interest therein. The property in question was the real estate of James Mulhall, deceased; and, upon his death, he having several children surviving him, descended, subject to his widow’s dower, under the
“If a devisee die before the testator, his heirs shall inherit the amount so devised to him unless from the terms of the will a contrary intention is manifest.”
It was held that the surviving brother was heir to Henry M. Blackman, and entitled to the legacy, but that his wife was not an heir. The court said:
“Now we think that it has never been understood that a widow takes from the estate of her husband’s father, dying
The court said further that, in one or two cases, the widow had been called by this court the heir of her deceased husband, but that the question is not as to what she is now called, or might properly be called, but what she was called at the time of the origin of the statute in question, 'and of a cognate statute. See, also, Braun v. Mathieson, 139 Iowa 409.
The last case on the subject to which our attention has been called is Schultz v. Schultz, 183 Iowa 920, which holds squarely that, under Section 3378 of the Code, a widow is not one of the heirs of her deceased husband, where, as here, an interest was claimed as the heir of a child who had predeceased an intestate father. The cases are there all reviewed.
We said, in McKeller v. Harkins, 183 Iowa 1030, 1043, a bastardy ease, referring to the common-law rule, that an illegitimate has no inheritable blood, and is without kin, and without ancestry:
“That a bastard has no inheritable blood is only a legal fiction. Legal fictions have their appropriate uses. They are the stepping stones of the law’s reasoning; the parables whereby its principles are illustrated. When its reason fails, the fiction falls. The fiction that a bastard has no inheritable blood has been shorn of its reason in this state by legislation. It remains, therefore, a fiction only. Our legislation has conferred upon the illegitimate the right of inheritance, with appropriate safeguards as to the certainty of paternity. Why, therefore, should we deal with finespun theories of the common law as to inheritable blood ¶ ’ ’
A fiction is sometimes called into operation for the purpose of casting the descent, and that is its only purpose in cases of this kind. When a fiction is assumed, it is for an innocent purpose, and in furtherance of justice, — not to do an injustice. A fiction that plaintiff’s wife survived her father would not be used to make plaintiff a bigamist, should he remarry after her death. It may not be spread out or extended, but it must be left where the law does, for the one phrpose, in this case, of casting descent. Section 3378 of the statute itself determines the descent. Under it, the property, under the circumstances of this case, descends to the heirs. The legislature having determined the matter, the fiction, if there should be any in the absence of the statute, fails. The husband is not an heir. The two children are heirs. We see no reason for invoking a fiction in order that the plaintiff,- who is not an heir, shall be given a part of the property which the statute says descends to his two children. Appellant argues that some of the cases, and particularly the Schultz case, may be distinguished, for that in the Schultz case there were no children. It seems to us that there is greater reason for holding in the instant case that the husband is not an heir, since here there áre two children, who are
We are of the opinion that the trial court properly sustained the demurrers, and the judgment is — Affirmed.